Comments for Judicial Statecraft – and Myopia at http://www.thecatholicthing.org , comment 1 to 3 out of 3 comments http://www.thecatholicthing.org Sat, 18 May 2013 01:29:16 +0100 FeedCreator 1.7.3 http://www.thecatholicthing.org/columns/2011/judicial-statecraft-and-myopia.html#comment-6060 I have to say that I find Professor Arkes' optimism far more appealing than the contrary outlook. It's also more energizing, more effective -- and in the light of faith -- more warranted. After one of his famous joint debates with Senator Stephen Douglas in the 1858 Illinois US Senate race -- a debate that had taken place in Cairo, Illinois, deep in the slavery-sympathetic southern part of the state, during which the audience was quite hostile to Lincoln's position -- a young supporter of Lincoln's, sitting in Lincoln's car on the train back to Springfield, was looking sullen. Lincoln asked him what was the matter. The youth replied that it seemed to him that slavery would never be abolished in our country. Lincoln replied, "Nonsense! Slavery is doomed, because it is an evil, and an evil cannot bear being discussed." Lincoln went on to note that his debates with Douglas were being picked up and transcribed verbatim in newspapers throughout the country and added, "by discussing slavery, we are teaching millions of men to hate it who may not otherwise have given it much thought." Similarly, abortion is an evil. Evils are always overthrown. We know not when or how, but we know it will be. If we join the struggle against it, we know we are on the winning side. And, as Professor Arkes notes, we already have fundamental law in place in our country that is diametrically at odds with any supposed "right" to abortion - as well as a history in which judges have been willing to apply that law to protect disfavored members of the human family. Here I think, for example of the 1948 Supreme Court case of Shelley v. Kramer, where the Court held that racially restrictive covenants on real estate (which prohibited the sale of houses in certain neighborhoods to persons of African descent) could not be enforced by state courts, for to do so would constitute "state action" that violated the 14th Amendment's Equal Protection Clause. Well, the 14th Amendment already has a clause forbidding any state from denying any "person" the "right to life" without due process of law. It would require the right context to present the question, but were it to be presented, all the Court would have to do would be to find that "person" for purposes of the Fourteenth Amendment includes the unborn. Such a ruling would require every State to afford protection to unborn life, and to refrain from any "state action" to the contrary. - Lee Wed, 16 Feb 2011 18:34:12 +0100 http://www.thecatholicthing.org/columns/2011/judicial-statecraft-and-myopia.html#comment-6058 Thanks for your thoughtful response, Dr. Arkes. But do you really think it is possible that the court will ever find a constitutional right to life and not simply return the issue to states? I ask because the guiding assumption of conservative jurisprudence in the last 50 years has been a lot closer to the legal positivism of Robert Bork than the natural law of, say, Aquinas. Getting 5 votes to overturn precedent is hard enough, let alone finding 5 votes to actually ban abortion. Overturning Roe and returning the matter to states seems like the best we can hope for in the current climate, no? And I do think the broader question is whether the overall prolife strategy depends a bit too much on the whims of Anthony Kennedy and the fortunes of the GOP. It's the best shot for the moment for sure, that Kennedy will change, and Obama will lose in two years... but if it doesn't happen and Obama is reelected in 2012 and come 2016 we are looking at even worse math on the court, then I think this question of long term strategy will have to be revisited!. - peterbrown Wed, 16 Feb 2011 12:57:18 +0100 http://www.thecatholicthing.org/columns/2011/judicial-statecraft-and-myopia.html#comment-6055 Great article! Mr. Arkes is always helpful. - Dan Deeny Wed, 16 Feb 2011 06:13:44 +0100